Re TW & TM (Minors)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Mostyn |
| Judgment Date | 24 July 2015 |
| Neutral Citation | [2015] EWHC 3054 (Fam) |
| Docket Number | No. FD14P04019 |
| Court | Family Division |
| Date | 24 July 2015 |
In the Matter of:
[2015] EWHC 3054 (Fam)
Mr. Justice Mostyn
(In Private)
No. FD14P04019
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, WC2A 2LL
Mr. T. Tyler (instructed by Huggins & Lewis Foskett) appeared on behalf of the Applicant.
THE RESPONDENTS appeared in person.
This is the hearing of the appeal by the appellant father against orders made by DDJ Drew on 19 th May 2015 sitting in the Central Family Court, the orders being made under sch.of the Children Act 1989. They concern child maintenance for two children, TW who was born on 24 th May 2005 and who is now ten, and TM who was born on 6 th August 2010 and who is therefore nearly five years old. The father is a well-known footballer who is now aged 32 and who is, on any view, in the autumn of his career. He has recently been playing for a club which was in the championship but which, at the end of last season, was relegated, under a four month contract which expired on 30 th June 2015. He has been offered a contract at a lower rate by the same club which would not be enough to meet his outgoings and obligations and he, through his agent, is hoping to negotiate a better contract either with that club or another club. However, as things stand at the moment he is out of contract and is not earning any money.
The judgment of the deputy district judge varied pre-existing orders for child maintenance. So far as TM is concerned the earlier order was dated 19 th February 2014. So far as TW is concerned the earlier order was made on 16 th April 2012. Both of those orders – and indeed orders prior to that – have been made by consent.
The first ground of appeal mounted by the father was that in the light of the decision of Dickson v Rennie [2014] EWHC 4306 (Fam) the court had no jurisdiction to make its orders on 19 th May 2015. That is the date of the order which is being appealed. That argument is, with respect, completely wrong. Dickson v Rennie decides that the court has no power to make a contested order for periodical payments unless there has been, pursuant to s.8(6) of the Child Support Act 1981, an antecedent calculation by the secretary of state or his predecessor, the Child Support Agency, in the maximum amount as provided for in para.10 of sch.1 of that Act. However, the order here in question was not an originating order; it was an order varying an earlier consent order. The earlier consent orders were unquestionably validly made for they were made by consent and in those circumstances, by virtue of s.8(5)(b) of the 1991 Act the court is empowered to make a maintenance order which is in all material respects in the same terms as a prior agreement. In his well-known decision of V v V (Child Maintenance: Periodical Payments) [2001] 2 FLR 799, Wilson J, as he then was, decided that it was perfectly acceptable for a court to conflate the requirement of a prior agreement and the making of the order into one exercise. He said in para.21 that he had no problem, provided that the words "by consent" appear above the order, in finding that that document supplied the necessary written agreement for the purposes of s.8(5). In such circumstances it simply cannot be gainsaid that the prior orders were validly made. Indeed, in order perhaps to make assurance doubly sure, it should be recorded that in the case of TM the earlier orders recorded that the Child Support Agency had carried out a maintenance calculation in the maximum amount thereby entitling the court to make an order topping up that calculation under s.8(6). There can be no doubt at all that there were in existence valid prior orders capable of variation and the suggestion that the learned deputy district judge did not have jurisdiction to vary her order is legally devoid of any merit. That ground, ground 1 of the appeal against the orders – there were two orders made on 19 th May, one for each child – is dismissed.
However, ground 2 is, in each instance, phrased that it was wrong for the deputy district judge to order the father to pay such a high proportion of his net income. In order to understand this ground it is necessary to examine the findings that were made by the deputy district judge. In her judgment she stated at para.1that she had formed an adverse view of the father. I should say that at the hearing before the deputy district judge each of the parents was self-represented. This demonstrates yet again the difficulty that the court is often placed in these days by the throng of litigants in person that the recent Legal Aid reforms have caused to enter the courtrooms. As has recently been pointed out by Aikens LJ in Lindner v Rawlins [2015] EWCA Civ 61 the presence of so many unrepresented litigants runs the risk of the courts making legally erroneous decisions. It is my opinion that in two respects, because of the lack of legal representation, the court has in this case reached legally erroneous conclusions.
I have mentioned that in her judgment the deputy district judge first recorded her poor impression of the father. She stated in para.14, "The impression I formed was that he was a man who was determined to put his own expenditure and enjoyment first and his obligations to his children came a very poor second." In para.19 she made factual findings about the father's financial position. She recorded the rate of the contract which was then in being at the club with which he was playing in May 2015 at £3000 a week which would mean a basic wage of £156,000 per annum. She recorded that there were bonuses to be paid in addition to that basic wage referable to goals scored and she concluded that his overall earning capacity was £190,000 per annum. She did not say in para.19 whether that was gross or net although when reading it I clearly infer that she meant it to be a gross figure. It would be a curious use of language for someone to describe their earning capacity in net terms. The only doubt in that regard has been dispelled by an email that has been received from the deputy district judge today which confirms that the figure of £190,000 was a gross figure. That figure of £190,000 is more than the maximum income of £156,000 which is provided for in the Child Support Act sch.1 and the regulations made thereunder.
Under the Child Support Act as reformed by the Child Maintenance and Other Payments Act 2008 calculation of child support is now done under a formula which is applied to gross income. If there are two qualifying children the rate is 1per cent for a gross income up to £41,600 and then 12 per cent on the next £114,400. The effective rate for someone earning the maximum chargeable income of £156,000 is 13.0per cent. If there are two children living in separate homes with different mothers then the percentage rate will be apportioned equally between them. So, if the gross income is £41,600 the payment for each child is 8 per cent; if it is £156,000 it is 6.53 per cent. The maximum income for the purposes of the formula of £156,000 was found by the deputy district judge to correspond to the father's basic wage at the time she heard the case. In my decision of GW v RW [2003] 2 FLR 108 at para.74 I suggested that in circumstances where a court makes a child maintenance order the appropriate starting point should almost invariably be the amount arrived at by application of the Child Support Rules. In the 2015/201edition of At a Glance at p.7 it is stated that, "Now that the 2008 regime has been fully implemented for new cases, it is reasonable to assume that the court will use the new calculation rules."
There are at least two reasons why this principle should be maintained and reaffirmed. The first is this. It would be an example of arbitrary law-making if the computation of child maintenance were radically different depending on whether it was done by the secretary of state under the 1999 Act or whether it was...
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